MICHAEL CLIFFORD: Lowry and inaction of Garda/Revenue

Saturday, April 13, 2013

By Michael Clifford

THE controversy that has come to be known as The Lowry Tapes tells us much about what passes for democracy in this State.

The issue involves prima facie evidence that at least one crime may have been committed by serving TD and former government minister, Michael Lowry. In a proper democracy, such as in Britain, this would be a matter for the police. The matter would be investigated and a file prepared for the state prosecuting body. Thereafter, charges would either be preferred, or the matter dropped completely on the basis that there was no case to answer.

We don’t do things that way. Instead of a criminal justice process without-fear-or-favour, we have waffle; point scoring; a political culture that is concerned only with what interests the public, rather than the public interest; and a criminal justice system that freezes whenever a politician appears on its radar.

A quick recap on the Lowry Tapes: on Feb 24, the Sunday Independent published a transcript of a phone conversation that took place between Lowry and a land agent, Kevin Phelan. The conversation dates from 2004, at a time when the Moriarty Tribunal was investigating Lowry’s financial relationship with businessman Denis O’Brien. This facet of the tribunal was investigating whether Lowry had interfered in the awarding of the second mobile phone licence in 1995, when he was Minister for Communications. Phelan was a land agent who had been involved with both men. He had refused to travel from his home in Northern Ireland to give evidence at the tribunal.

Phelan taped the conversation without Lowry’s knowledge. In recent months, after he fell out with Lowry, Phelan handed the tape to academic and journalist, Elaine Byrne. She brought the tape to the Sindo.

The conversation runs to 12 minutes and 42 seconds. Lowry is highly animated in the call, his dialogue littered with expletives as he makes repeated reference to a payment to Phelan of €200,000 or €250,000.

“Now, the €200 — the €250 — that I gave you, I paid that directly. I never put that through my books or my account or anything. Nobody’s going to fucking get it,” Lowry says on the tape.

The day after the Sindo publication, Conor Ryan wrote in the Irish Examiner this admission contradicts Lowry’s evidence to the tribunal, and a subsequent letter he wrote to the inquiry in which he claimed to have only ever paid Phelan €65,000. The tribunal ultimately found that this payment was orchestrated by Lowry “for the principal purpose of presenting a contrived falsehood to the tribunal”.

Two issues arise from the tape:

- Did Lowry mislead the tribunal or tell the inquiry a deliberate untruth?

and

- Was the money referenced in the tape undeclared for tax, as he seems to infer in the recording?

Misleading the tribunal, or telling untruths under oath would be regarded in a proper democracy as a serious criminal offence. Similar offences committed by high-profile politicians in Britain were swiftly dealt with by the police in that jurisdiction.

Jeffery Archer went to prison for perjury, while former minister Chris Huhne was jailed last month for perverting the course of justice by getting his wife to take penalty points for him.

In a proper democracy, the police force and Revenue would investigate the contents of the Lowry Tapes with extreme urgency. Confidence in the criminal justice and tax systems would demand no less. If there is even a whiff of favour towards a member of parliament in a criminal justice matter, then democracy is undermined. And right now, in light of all that is going on, democracy is not in a healthy condition.

In a proper democratic state, the only role for the cabinet in this matter would be to issue a statement from the Minister for Justice to the effect that he has been assured by the Garda Commissioner that the investigation is receiving sufficient resources and attention. Thus, the minister could impress on the commissioner how vital it is that this matter be investigated urgently.

So it would go in a proper democracy. But what happens here? There is no indication that the gardaí are dealing with the matter to any serious extent at all. In the absence of this proper democratic accountability, the focus appears to be on using the affair as a political football.

Micheál Martin has called for the Moriarty Tribunal to be reconvened. This is ridiculous stuff, but it might embarrass the Government. Martin would be better off giving the issue of tribunals a wide berth in light of his own defence in 2007 and 2008 of Bertie Ahern’s ludicrous evidence about how he came into large wads of cash.

On the Government side, junior minister Alan Kelly has called on Lowry to come clean about his finances. This again is ridiculous and redundant and designed merely to hoover up votes in the constituency shared by Kelly and Lowry.

There has been nothing from Enda Kenny to suggest that he takes the tapes issue seriously, or has consulted his Minister for Justice on the matter. Nothing from Alan Shatter to show that he takes his ministerial brief seriously. It would appear that Kenny et al are gambling that the public doesn’t appreciate the seriousness of what is at issue, and intend to keep their heads down until it blows over.

The function of the media in a democracy has also been strained by the Lowry tapes.

The Irish Examiner, Irish Times, Newstalk FM and TV3’s Vincent Browne Tonight have all covered the story in a manner befitting its seriousness. However, the national broadcaster has not.

This failure to address a matter of serious public interest may be down to the fall-out from RTÉ’s libel of Fr Kevin Reynolds last year. Some within the station have privately suggested that there is also a reluctance to be seen to be dancing to the Sunday Independent’s tune.

In that vein, the crusading zeal of the Sindo on the tapes is curious. While Elaine Byrne and Gene Kerrigan at the paper have unimpeachable records in pursuing tribunal related stories, the same can’t be said for the paper’s broad editorial position.

During Bertie Ahern’s evidence to the Planning Tribunal, the Sindo repeatedly defended his tall tales about cash that appeared to grow on trees. The propaganda was countered within the paper by Kerrigan and the late Alan Ruddock, but the main thrust of the coverage was to defend Ahern come hell, high water, or a good tip on the horses.

Another tribunal, another witness with questionable evidence, and suddenly the editorial line in the Sindo has taken on a crusading zeal with extensive coverage, including radio advertising.

Some might suspect the zeal is fuelled by the apparent beef the editorial hierarchy at the paper has with its owner, Denis O’Brien, rather than a crusade to adhere to the best traditions of the media’s function in a democracy.

However, irrespective of the Sindo’s complicated role in the story, there is no excuse for the failure of the authorities to address the Lowry Tapes with the seriousness the matter requires. Democratic accountability demands no less.